A call for parliamentary input into the appointment of judges has been made at a House of Lords inquiry into judicial appointments procedure. A legal academic, Professor Alan Paterson, told the Lords constitution committee there were dangers in continuing to push for full separation of powers between parliament and judiciary in the light of the increasing powers and responsibilities that have been given to judges. There were problems in a democracy with one branch of the state having such a big role – particularly a self-replicating body in which judges have a large influence over judicial appointments.
Paterson, director of the Centre for Professional Legal Studies, University of Strathclyde, was speaking at the first hearing by the committee into the judicial appointments process in which it will look at judicial diversity, whether Britain should have US-style confirmation hearings or some other form of parliamentary oversight and whether the current system protects judicial independence. It is expected to report by the end of the year.
Paterson said: “There is an argument for a slightly increased role for the executive and parliament to get involved in the pre-appointments stage.” He backed the idea of a parliamentary committee asking questions of potential judges on the Supreme Court and possibly the Court of Appeal. Among questions they would be asked might be their view on the role of the Supreme Court in a democracy or their view on parliamentary sovereignty – the idea that parliamentary legislation is supreme over all other sources of law. It is known that there was a split view among judges on this issue, he added.
At present appointments are made by the Judicial Appointments Commission (JAC) created in 2006 as a result of the Constitutional Reform Act 2005, which removed appointments from the lord chancellor and, giving the responsibility of finding nominees to a panel of judicial and lay members. The lord chancellor retains only a limited veto. The intention was to further the principle of separation of powers and judicial independence.
Professor Brice Dickson, professor of international and comparative law at Queen’s University Belfast, cited his experience of Northern Ireland as a reason why he opposed “having politics involved” in appointments. He disagreed that just because powers of the judiciary had increased, the executive must be involved in appointments. It would be a dangerous move and unnecessary “given parliament is sovereign and it can change the decisions [made by judges]”.
If judges’ views were known as a result of confirmation hearings, those drawing up names for panels sitting on individual Supreme Court cases “would have to bear in mind the answers they gave” at the hearings.
Judges had a very significant role in appointments on the JAC, said Prof Cheryl Thomas, professor of judicial studies, at University College London. Lawyers and judges had a majority over the lay members of the selection panels and she suggested the size of the panels be increased (from five for the Supreme Court) with the lord chief justice somehow involved. There could be more lay members including parliamentarians, though she did not favour US-style hearings.
The tension means every measure you bring forward to deal with accountability runs into the bulwark of judicial independence. But at the appointments stage it doesn’t affect judicial independence since we make it very difficult to remove a judge – Prof Alan Paterson
Currently the executive “can’t wield any significant power [over selection], only rejection. Elsewhere selection panels send a list of suitable nominees from which the executive chooses one. “The [UK] system removes one of the potential strategies” to increase diversity – political leadership. She cited President Clinton’s demand that the judiciary should be “more like America”. “They needed to give him a group of nominees [from which] he could select to ensure diversity.” Such a system is a double-edged sword, she acknowledged, since President Reagan “did not follow that route” to increase diversity.
On concerns about diversity overriding appointing on merit Dr Erika Rackley, senior lecturer in Durham Law School, University of Durham, acknowledged that merit and diversity might pull in different directions so diversity should be included among the criteria of merit. Dickson said: “Life experience should be taken into account.” Paterson said merit is cultural and changes over time. Once being related to Lord Halsbury was regarded as the highest merit one could have for judicial appointments.
Rackley expressed some worry that confirmation hearings would put off candidates from more diverse backgrounds. “We have some evidence that non-traditional candidates have a harder time with those kinds of processes.” It was necessary to avoid discouraging them.
Members of the committee asked whether there was research to show how more diversity affected judgments handed down. Thomas said there was very little to show that although some American research indicated that inclusion of a “diverse” member on three-judge panels “increases the probability that the whole panel will vote in favour of affirmative actions” – American positive discrimination schemes regarded by some as anti-constitutional. No research existed for Britain since there was no diversity in place that could be researched.
More importantly, though, there was evidence that where there was greater diversity, people had a higher perception of judges acting fairly.
The committee turned to judicial training and Paterson noted there was no system of appraisal of judges. “You need protections but you need to get some objective evidence of how they are doing.” Criteria were used to appraise tribunal members “and I don’t see why they shouldn’t apply to judges”.
Note: This is the first hearing of the Lords constitution committee on judicial appointments and took place on June 6 2011. The second hearing is reported here: Senior judge backs role for politicians in judicial appointments
Alrich comments on issues raised in the constitution committee hearings: